The HR office is often the place where a lawsuit can be prevented. That’s why HR pros must make sure every discharge or other adverse employment decision (demotion, pay cut, etc.) can be successfully defended.
Be especially careful if you’re asked to approve a decision that comes closely on the heels of a discrimination or harassment complaint. An adverse decision under those circumstances practically screams “Sue us!”
Recent case: Melissa Guerrero worked at a refinery on the scaffolding crew when a male co-worker gave her an unwelcome hug and kiss. The next day, the same co-worker began making sexually explicit comments about Guerrero’s sexual orientation, bringing up Guerrero’s long-term relationship with co-worker Veronica Villareal, Guerrero’s girlfriend.
Guerrero complained to managers, who told her to go home for a few days. Then, when she returned to work, Guerrero learned she had been laid off.
Both women sued, alleging retaliation for reporting alleged sexual harassment. Their former employer couldn’t back up the layoff with specific business-related reasons. The court therefore ordered a jury trial to determine whether Guerrero had been fired because she complained about alleged sexual harassment. (Guerrero, Villareal v. Brock Group, et al., No. 08-CV-2913, SD TX, 2010)
Final note: Neither woman could prove sexual harassment because the incident didn’t create a hostile environment. But that didn’t stop their retaliation claims. The fact is, employees have a much easier time proving retaliation for reporting alleged harassment than they have proving actual harassment.
- Attorney-client privilege: It does apply when e-mailing from work
- Tell bosses: Accept settlement without comment
- Lawsuit-proof your firing decisions: Have those who hire or promote also do the firing
- Counter retaliation claims by tracking PHRC and EEOC filings, internal complaints
- Isolated racist comments won't always be discrimination